Public Funding (Legal Aid) in Criminal Cases

Public funding for legal help is available for all those who are to be questioned by the police under caution, or have been arrested. This means you are entitled to free legal advice and representation in those circumstances. Thereafter, there are restrictions as to who is entitled to free public funding.

What are the reasons for public funding?

Public funding is available to protect the liberty, livelihood and reputation of citizens. Access to justice for all is extremely important. European laws also protect free legal advice in criminal cases. The European Convention on Human Rights states that anyone charged with a criminal offence is entitled to defend themselves in person or with free legal assistance if they cannot pay for it themselves.

Unfortunately, the circumstances in which someone can access public funding have been restricted in recent years. The old criminal legal aid scheme no longer exists, and much criticised cuts to legal aid have been made by government. Under the current system, legal aid for criminal cases is means tested, whereas historically it was not. Public law centres and Citizens Advice also offer free legal advice in some situations, but these bodies may not be available for representation.

What’s the legal framework?

Legal aid is governed by LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) which created the Legal Aid Agency (LAA). The LAA ensures legal services from lawyers are available to the general public.

What representation is available at the police station?

If you are due to attend the police station for questioning under caution, or you have been arrested, you are entitled to a solicitor – whether over the phone or at the police station. If you cannot afford your own solicitor, a duty solicitor canbe askedto attend the police station under the police station advice and assistance scheme. The duty solicitor willprovide you with free legal advice ahead of the interview, and free representation at the interview. It is advisable that you take the offer of a duty solicitor to protect yourself.

Free representation is also freely available where there is an application for a warrant of further detention (or an extension to such a warrant).

What about after the police interview?

If, following questioning, you are charged with an offence, there is no automatic entitlement to criminal legal aid (now known as a ‘representation order’). You would have to apply to the Magistrates’ Court for a representation order.

Eligibility for legal aid depends on two tests: the merits (‘interests of justice’) test, and a means test. If you qualify under the interests of justice test, you will then be means tested (ie. itdepends on your financial position).

What is the interests of justice test?

This means the case needs to be serious enough to warrant you being given legal aid. If, for instance, the offence with which you are charged is not an imprisonable offence, you will not pass this first test. At the other end of the scale, if you are charged with a serious offence such as murder or other offence for which a prison sentence is mandatory, you will pass the test. So the more serious the consequences of a conviction, the more likely you will be entitled to legal aid.

For other cases that don’t automatically fall into either category, the court will consider various factors such as whether there is a serious possibility that the accused may lose their liberty or livelihood; there is a serious risk of a damaged reputation; the charge involves a particularly complex area of law; if they will have trouble following the case; if a lawyer is needed to question a witness; if legal aid is needed to protect a third party’s interests; and so on. This test applies to hearings in both the Magistrates’ Court and Crown Courts.

Means test

The means test looks at your financial circumstances based on your household income, capital and your outgoings. Some people will automatically be granted funding (this is known as a passported application). This includes all those under the age of 18; or receiving income support, jobseeker’s allowance, universal credits, or a state pension.

When you are being means tested, your income will be ‘weighted’ to account for the number and ages of family members, usually, any children. The current ‘adjusted’ household income limit (other than benefits) for legal aid in the Magistrates’ Court is £21,000. Though if you are single and you earn more than £11,590 you will not be entitled to legal aid.

The current limit of annual household disposable income, over which you are not entitled to legal in the Crown Court, is £37,500. If it is between £3,398 and the upper limit, you will have to make an income contribution towards your costs. And if you have more than £30,000 in capital and equity, you may have to make a contribution towards your defence costs if you are convicted.

Applications for criminal legal aid for legal representation in the courts are made by completing a form CRM14 (available on the website). Your adviser can tell you what other forms also need to be completed.

If you are refused legal aid, you can appeal. It is also worth noting that if you are refused legal aid but you cannot afford to pay privately, you can appeal to the LLA’s hardship unit.

Representation for the duration of the trial

If you are granted a representation order, this enables you to have legal representation throughout the whole trial, including advice on appeals if you are convicted.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.